Age Discrimination in the Workplace (Your Rights)

Age discrimination or ageism in the workplace is a form of unlawful discrimination under the Equality Act 2010. Employers are under a legal duty to prevent age discrimination in the workplace.

The Equality Act 2010 states individuals must not be discriminated against at work because they are (or are not) a certain age or in a certain age group.

In addition, the legislation protects employees from being discriminated against because someone thinks they are (or are not) a specific age or age group, or because they are connected to someone of a specific age or age group.

What is age discrimination?

You may have been discriminated against if someone treats you less favourably than they treat or would treat someone else, because of your age. Unfair treatment can range from a one-off action to a policy that discriminates based on age.

The Equality Act’s protection has a wide ambit. The Act is designed to protect you throughout all stages of the employment cycle:

• Recruitment
• Employment terms and conditions
• Pay and benefits
• Access to training and promotions
• Dismissal
• Redundancy

This means you are protected under section 83(2) if you are a job applicant, currently employed, formerly employed or self-employed, among others.

The person’s motive or intention for treating you in this way is irrelevant; what counts is that there has been discriminatory treatment.

It is also irrelevant whether or not the person who discriminates against you is the same age as you. This means that they cannot argue they are not liable for a discrimination claim because you are both the same age.

Types of age discrimination

There are four types of age discrimination which are unlawful: direct discrimination, indirect discrimination, harassment, and victimisation.

Direct age discrimination

You can be directly discriminated against where you have been treated less favourably because of your age, your perceived age or the age of someone you are connected with.

Example of age discrimination because of your actual age

Your employer is offering a series of training courses on social media but has refused for you to go on the courses because he thinks you are ‘too old’ to understand the subject matter.

Example of age discrimination because of your perceived age

You are 45 years old, but look much younger. Your employer is not allowing you to attend conferences, as she doesn’t think someone who looks so young should be representing the company.

Indirect age discrimination

Indirect age discrimination can occur where your employer has put a policy, practice, procedure or workplace rule in place that applies to everyone, but puts people of a certain age group at a disadvantage.

Example of indirect age discrimination

You are 21 years old and have been deterred from applying for a job because it requires 10 years of experience. Although this applies to everyone seeking to apply, it disadvantages people of your age because they are less likely to have that amount of experience.

In Homer v Chief Constable of West Yorkshire Police (2012), the UK Supreme Court held that the employer’s policy that its highest grade of employment was only open to employees with a law degree had indirectly discriminated against those close to retirement age.

Harassment

If you have been the subject of unwanted conduct related to your age, which is either meant to, or has the effect of, violating your dignity, you may have been harassed.

The Equality Act also seeks to protect people from working in intimidating, hostile, degrading, humiliating or offensive environments.

Example of harassment

Your colleagues have made comments and jokes about the age of your partner, which you find offensive and humiliating.

Victimisation

If you’ve made a complaint of age discrimination to your employer under the Equality Act, or are supporting someone else who is making a complaint, and this has had a negative impact on how you are being treated in the workplace, you may have suffered victimisation.

Example of age victimisation

Employees have been making age-related offensive jokes about your colleague. You help your colleague report this to your manager and the manager treats you badly as a result of this.

Can age discrimination ever be justified?

Direct age discrimination because of your actual age can be permitted in some instances if the employer can show that there is a good reason for that discrimination.

The two other types of direct discrimination (discrimination because of your perceived age or the age of someone you are connected with) cannot be objectively justified. Your employer must be able to show that the discrimination is proportionate, appropriate and necessary to achieve a legitimate aim.

Factors such as business needs and efficiency may be considered to be legitimate aims. Your employer can’t justify discrimination by saying it’s necessary to reduce costs, but costs can be taken into account as part of the justification if there are other good business reasons.

Your employer may also be able to justify indirect discrimination in limited circumstances if it is a “proportionate means of achieving a legitimate aim”.

Harassment can never be justified. However, you may not be able to make a claim against your employer if they can show they did everything they could to prevent their employees from behaving like this. In this case, you may want to make a claim against your harasser.

Having a policy document is not enough evidence to prove that your employer took all reasonable steps to stop the behaviour. The employer must be able to prove the existence of the document and the implementation of the policy, such as through the training of employees.

There are also limited exceptions regarding age such as pay and other employment benefits based on length of service.

In certain circumstances, an employer can specify that job applicants must have a particular protected characteristic. This is known as an occupational requirement.

Example of justifiable age discrimination

A job advert specifies that an actress for a film is required to be 25 years old.

But it’s not enough for your employer to decide they would prefer to employ someone who has the particular age characteristic. The age requirement must be crucial to the job and relate to the nature of the job. The employer must also show that it is a “proportionate means of achieving a legitimate aim”.

An employment lawyer can help you determine whether there was any reasonable and less discriminatory way of achieving the same aim.

I think I’ve suffered age discrimination – what should I do next?

It’s important to raise the issue informally with your employer at the earliest possible opportunity, to minimise any negative effects on all of the parties involved.

The Advisory, Conciliation and Arbitration Service (ACAS) can provide you with free, independent advice on your claim.
Your employer should ensure they have policies in place to prevent age discrimination across the entire employment process including, but not limited to, recruitment, training and development, and dismissal.

If you’re unsatisfied with how your employer handles the matter, you can make a formal complaint (a grievance) to your employer.

You should provide your employer with the details of your complaint, what happened and when, and make it clear that you are complaining about age discrimination. You may also want to suggest solutions.

Your employer will need to investigate the matter. They are obliged to convene a meeting without unreasonable delay to discuss your grievance and to take steps to try and prevent the conduct.

Following your employer’s grievance procedure will help show an Employment Tribunal (if you choose to pursue a claim) that you have followed discrimination guidance from ACAS.

If the tribunal considers that you have unreasonably failed to follow ACAS’s guidance, it can reduce the compensation award.

What if my employer doesn’t act on my complaint?

If you are not satisfied with the outcome of your grievance, or your employer has simply not acted on your complaint, you should consult ACAS.

You must notify ACAS if you plan to make a claim.

Through ACAS’s early conciliation service you may be able to settle your dispute with your employer. Settlements can be a quicker, cheaper and less stressful process for everyone involved, instead of bringing a claim for age discrimination.

If early conciliation does not work you may have grounds to make a claim for compensation at an Employment Tribunal.

It is vital to take legal advice as soon as any issues at work arise. A solicitor specialising in employment law can assess the value of your claim and advise you on the next steps to take and when to take them.

There is a strict time limit: you must submit form ET1 within three months of the last act complained of. The tribunal has discretion to extend this time limit.

A solicitor can contact your employer to obtain information on your behalf and will help ensure the form to make your claim is filled in correctly.

The tribunal can award for financial loss and injury to feelings (for the upset, hurt and distress the discrimination has caused you).

Vento v Chief Constable of West Yorkshire Police (2003) set out three bands of compensation guidelines for injury to feelings:

• Top band: for the most serious cases of age discrimination, for example, where you’ve suffered a long campaign of harassment.
• Middle band: for cases that do not merit the top band.
• Lower band: for less serious cases.

The levels for each band for claims presented on or after 6 April 2021 are:

• Top band £27,400 to £45,600
• Middle band £9,100 to £27,400
• Lower band £900 to £9,100